Summary: Mrs X complained the Council has not provided suitable education for her son, Mr Y. Mrs X said this caused the family distress and impacted Mr Y’s mental and physical health. There was fault, arising from service failure, in the way the Council did not ensure Mr Y received the provision in his Education, Health and Care Plan and complaint handling was poor. This frustrated Mrs X and Mr Y missed plan provision for one and a half academic terms. The Council should apologise and make a financial payment.

The complaint

1. Mrs X complained the Council has not provided suitable education for her son, Mr Y. Mrs X said this caused the family distress and impacted Mr Y’s mental and physical health.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Back to top

What I have and have not investigated

6. I have investigated Mrs X’s complaint since February 2024. I reference events prior to this for context in this matter.
7. I have not investigated earlier events as Mrs X could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

Back to top

How I considered this complaint

8. I read Mrs X’s complaint and spoke to her about it on the phone.
9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
17. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
18. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision to cease to maintain an EHC Plan.

19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened.

20. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
21. The Council’s complaint policy says it should issue the stage one response within ten working days. The Council should issue its stage two response within 20 working days.
22. When the Council has completed its stage one and two process, it should refer the individual to the Ombudsman.

What happened

23. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
24. Mr Y has complex additional needs. The Council issued his EHC Plan in May 2022.
25. The Council reviewed Mr Y’s EHC Plan in March 2023. The Council wrote to Mrs X after the review, in April 2023, telling her it would cease to maintain Mr Y’s plan.
26. The Council ceased to maintain Mr Y’s EHC Plan in July 2023.
27. Mrs X appealed against the Council's decision to the Tribunal in August 2023.
28. The Council consulted with several education placements in late 2023 and early 2024. None of the placements could offer Mr Y a place.
29. In May 2024, the Council consulted with tuition providers because it could not find a placement for Mr Y.
30. A tuition company, tuition company B, confirmed it could support Mr Y. It met with Mr Y and Mrs X in July 2024.
31. The Council continued to consult with education placements. No placement could offer Mr Y a place.
32. Mrs X complained to the Council in August 2024. She complained the Council neglected Mr Y’s education and social care needs since 2021.
33. The Council issued Mr Y’s EHC Plan in September 2024. The plan confirmed Mr Y would receive an Education Other than at School (EOTAS). This included tutors from the tuition company until the Council could source a placement.
34. At the end of October 2024, tuition company B reported Mr Y missed several sessions. Mrs X asked the Council to provide a different tutor. The company agreed to try and recruit a new tutor to support Mr Y.
35. In November 2024, tuition company B confirmed it could not recruit a tutor for Mr Y.
36. The Council issued its stage one complaint response in November 2024. The complaint response accepted Mr Y missed EHC Plan provision in 2021. It apologised and offered a financial remedy. The response confirmed the Council had made “significant endeavours” to source an education placement for Mr Y with no positive responses. The Council confirmed it was still looking for a placement and hoped to provide tuition.
37. At the end of November 2024, the Council secured tutors from another tuition company. The tutors started to support Mr Y in December 2024.
38. Mrs X complained to the Council in January 2025. She repeated the Council had neglected Mr Y.
39. The Council responded to Mrs X’s January 2025 complaint in February 2025. The Council resent the complaint response from November 2024. The Council response offered Mrs X an escalation to stage two, or she could approach the Ombudsman.
40. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to pay compensation for the impact on Mr Y.
41. In response to my enquiries the Council stated it had not completed the complaint process. The Council admitted the confusion in this case because of the education and social care parts of this matter.

My findings

42. This is a complex matter. The Council adult social care and education services supported Mr Y. This investigation is about the educational service. I have completed a different investigation about adult social care matters.
43. The Council has a duty to secure the special educational provision in the EHC Plan (Section 42 Children and Families Act). Paragraph 17 confirms the Council must provide this provision during any appeal against the decision to cease to maintain the plan. The Council provided tuition from July 2024. It then changed the tutor when Mrs X asked. The Council evidenced it provided provision from the other tutors from December 2024. The Council has not evidenced any provision from February 2024, the start of this investigation, until July 2024.
44. I consider the Council not providing this provision to be service failure because of a lack of available education placements. The Council sent over 30 consultations to education placements since it decided to cease to maintain Mr Y’s EHC Plan. None of the placements offered Mr Y a place. The Council then decided to offer tuition because it could not source a placement.
45. Mr Y suffered an injustice by this service failure. He did not receive the provision detailed in his EHC Plan from the time this investigation is considering, February 2024, until the tuition started in July 2024, one and a half academic terms.

Complaint handling

46. The Council accepted its confusion about this matter in its response to my enquiries. There are two parts of Mrs X’s complaint including education and adult social care services, covering several years.
47. Mrs X complained and the Council should have issued the stage one response by the end of August 2024. It issued its response in November 2024, a two-and-a-half-month delay. This is fault, frustrating Mrs X.
48. I have seen no evidence Mrs X asked the Council to complete a stage two investigation.
49. Mrs X complained again in January 2025. The Council sent its November 2024 response again in February 2025. The Council offered Mrs X a stage two investigation or she could approach the Ombudsman. This is not in line with the Council policy. This is fault, but I do not consider this has caused an injustice to Mrs X.

Back to top

Agreed action

50. To remedy the outstanding injustice caused to Mrs X and Mr Y by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Mr Y for not providing Mr Y with EHC Plan provision for two and a half terms. Apologise to Mrs X for the delays in the complaint response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £1,500 for not providing the EHC Plan provision for one and a half academic terms. This money should be used for Mr Y’s benefit.
51. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

52. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Mr Y.

Back to top

Investigator's decision on behalf of the Ombudsman